*1 KELLOGG COMPANY
NUGGET DISTRIBUTORS' COOPERATIVE OF AMERICA, INC., DBA NUGGET DISTRIBUTORS'
Opposition No. 81,776
June 20, 1990
Helen R. Wendel
Attorney-Examiner, Trademark Trial and Appeal Board
Opposer, on May 11, 1990, has filed a motion for a protective order pursuant to Trademark Rule 2.120(d)(1), on the ground that the interrogatories served upon opposer by applicant on April 9, 1990 exceed seventy-five, counting subparts. A copy of the interrogatories has been submitted with the motion.
Applicant, in its timely filed opposition to the motion, argues that the total number of interrogatories served upon opposer is actually seventy-four, including subparts, and not the one hundred sixteen claimed by opposer. Applicant further contends that opposer has failed to allege that the interrogatories represent a substantial burden to opposer. Opposer has filed a reply in which it maintains that applicant has counted only the separately designated subparts in its interrogatories and has ignored the multiple questions which do not have separate letter designations.
Under amended Trademark Rule 2.120(d)(1), effective November 16, 1989, the total number of written interrogatories which a party may serve upon another party in a proceeding before the Board shall not exceed seventy-five, counting subparts, except upon motion by a party for additional interrogatories with a showing of good cause therefor or upon stipulation by the parties. If a party upon which interrogatories have been served believes that the number of interrogatories served exceeds the limitation and is not willing to waive this basis for objection, the party shall, within the time for (and instead of) serving answers and objections to the interrogatories, file a motion for a protective order, accompanied by a copy of the interrogatories.
Opposer was acting entirely within the provisions of Rule 2.120(d)(1) when it elected to file a motion for a protective order within the time for and instead of serving answers and objections to the interrogatories. Moreover, opposer was required only to have an honest belief that the interrogatories exceeded the limitation imposed by Rule 2.120(d)(1) and was under no further obligation to allege that the interrogatories were burdensome.
Accordingly, the sole question to be determined is whether the interrogatories served upon opposer exceed seventy-five, counting subparts. In determining whether a set of interrogatories exceeds this limit, each subdivision of separate questions, whether set forth as a numbered or lettered subpart, or as a compound question or a conjunctive question, is counted as a separate interrogatory. See Brawn of California, Inc. v. Bonnie Sportswear, Ltd., Opp. No. 80,272, slip op. (TTAB June 6, 1990). The Board will look to the substance of the interrogatories in making its determination on the number thereof and will not be bound by the propounding party's numbering system. If an interrogatory includes an initial question followed by additional questions to be answered if the first is answered in the affirmative, the initial question and each follow-up question will be counted as separate interrogatories.
*2 Applying the above guidelines to applicant's interrogatories, the Board finds that the interrogatories exceed the limitation imposed by Rule 2.120(d)(1). Accordingly, opposer's motion for a protective order is granted. Opposer is relieved from answering applicant's interrogatories served April 9, 1990. Applicant is allowed until thirty days from the date hereof to serve a revised set of interrogatories in their stead, not exceeding seventy-five in number, counting subparts. If the revised interrogatories are not served until after the close of discovery, presently set for July 3, 1990, the scope of the interrogatories may not go beyond that of the originally propounded interrogatories.
Trial dates, including the period for discovery, remain as set in the trial order issued April 5, 1990.